I discussed the assassination of Anwar al-`Awlaqi last Saturday, just trying to reason through the moral, legal and constitutional issues as a layperson. When I got to the end of the posting, I just could not understand how what was done was legal or constitutional, since al-`Awlaqi was deprived of his 6th amendment rights to a trial.

Of course, under the laws of war (e.g. Hague IV), virtually anyone can be killed who is contributing to the war effort. But I still don’t understand how a drone strike by the CIA on a civilian in Yemen, authorized by a civilian body, is part of a war as the word is commonly understood.

A friend suggested that the assassination was authorized under the two executive orders (Ford and Reagan) forbidding assassination, which have a loophole. Assassination is permitted by them if a person is a concrete threat to the United States, i.e., is actively planning an attack on it, and if the president so certifies and “Congress” agrees. My interlocutor suggested that agreement by the Senate Select Committee on Intelligence would be enough to constitute congressional approval.

But now Reuters is reporting that President Obama did not even sign off on the kill order, so that that he could remain politically protected. (If what was done was legal, why would the president have to be “protected”)? Nor does Congress, even a rump Congress in the form of a committee, seem to have been involved. So the loophole in the anti-assassination executive orders did not come into play.

Rather, a secret cell within the National Security Council (an advisory body that reports to the president and is considered within the executive branch of the US government) has drawn up a kill list, and gets an authorizing memo from the Department of Justice.

The grounds for assassinating someone are self defense (under the UN Charter, all member states have a recognized right to defend themselves from attack) and the 2002 congressional authorization for the war on terror.

These two grounds for action, and having the order come from the NSC with Eric Holder’s imprimatur, are extremely troubling. Under the Constitution, a jury should decide if a US citizen has committed treason against the US. The National Security Council isn’t even mentioned in the constitution, and it decides whether to blow an American away, without even the president’s signature?

Moreover, the doctrine, if that is what it is, seems full of holes. If al-`Awlaqi were killed as an enemy officer, then why are the civilians at DOJ and the NSC making the decisions, and why is the order carried out by the civilian CIA?

And, how solid is the intelligence showing that al-`Awlaqi had an operational and not just a propaganda role in al-Qaeda? As good as the intel on Iraq’s mobile biological weapons labs? Who decides how good the intel is, i.e., how solid the charges are?

If the Reuters report is correct, the US government has completely gone off the rails and we now have a black cell inside the NSC that has substituted itself for the constitution, for the courts, and for due process, on the grounds that it is fighting a war against 300 guys in Yemen and 4 guys in Thailand and 90 guys in the Philippines, etc., etc.

Glenn Beck once fantasized that Obama wanted to send drone strikes down on patriots in the Midwest. More craziness, I thought. But what if the NSC decides that objecting to al-`Awlaqi’s assassination constitutes a form of material support to terrorists? Couldn’t they just have a drone directed down onto your house? President Obama, by his cowardice in the face of the National Security State, is actually setting things up so that even Glenn Beck’s conspiracy theories begin to sound not so insane.

Congress and the courts need to intervene here. There are too many laws being broken by the US government, too many questionable assumptions being made, and too many contradictions in official policy for these actions to be considered under the rule of law. A legal framework has to be erected for drone strikes on Yemen and Pakistan, which at the moment are cowboy special operations, if they are to continue, and there should be a transparent Status of Forces Agreement with those countries. Otherwise eventually an American government official is going to end up in the dock at the world court in the Hague. If we are at war with a small asymmetrical organization, some other branch of government has to certify that besides the executive, which typically makes expansive claims about its authority to act. If US citizens are being executed or assassinated, the courts have to be brought in somehow, some way.

32 Responses

Before you categorically state (as you do in the lead to your post) that “Palin was Right about those Government Death Panels,” you should at least attempt to corroborate the Reuters report. News organizations have been known to get it wrong.

But even if the report is correct, it seems to me that your inability to understand how Al-Awlaqi’s killing was “legal or constitutional, since Al-Awlaqi was deprived of his 6th Amendment rights to a trial” is a result of your inability to accept that we are in a war. The fact is we are in a war (an asymmetrical war, but war, nevertheless), and AQAP (of which Al-Awlaqi was a leader) as well as Al-Qaida and its other affiliates, have attacked the United States and its worldwide interests. The United States does have the right of self-defense, and in a war, the enemy leadership is fair game.

That Al-Awlaqi wore civilian clothes does not make him a “civilian” in the normal sense of the term. In fact, under the Geneva Convention, he would be labeled an Unlawful Enemy Combatant, since he has engaged in war without adhering to the Convention’s precepts for engaging in lawful combat: Wearing a uniform, displaying rank, not attacking civilians, etc. By waging hostilities against the United States as an Unlawful Enemy Combatant, Al-Awlaqi forfeited his “right” to a trial, even for treason. As an Unlawful Enemy Combatant, he engaged in hostilities against the United States on a worldwide battlefield. Under the Law of War, the Constitution, and the United Nations Charter (Article 51), the United States had the right to kill Al-Awlaqi.

Bill, you are also in a “war on drugs” do you support the kiling without trial of proponents of legalization? Or suspected drug dealers? Why not just have death squads roaming around America “disappearing” users and dealers. Al Awlakie was killed because of what he said not what he did, or at least that’s what I believe. You may think differently but we will never know now will we? That’s the point! If you allow your government to act outside the law, you don’t deserve liberty, and killing a citizen, under the circumstances Al Awlakie was killed, was outside the law.

Yusuf, the war in which we are engaged against Al-Qaeda and its affiliates is a true (though asymmetrical) war in the classic sense of war. The “war on drugs” is a metaphor that has nothing to do with actual war. The two are not comparable.

Al-Awlaqi was killed, not for what he said, but for what he did. He was a leader of AQAP, which had planned and carried out attacks against United States interests. As a leader of an organization that had engaged in war against the United States, he was, as I stated earlier, fair game and a legitimate military target.

Bill, it’s good to have somebody with your worldview posting here, so people with a more, maybe “humane” set of yearnings can keep clearly in mind how many (and how deeply implanted in the state security apparatus and the set of Our Fellow Americans) are the old Cold Warriors, for whom every act that tickles their limbic system’s tribal neurons is ipso facto, quis erat demonstrandum, fait accompli, absolutely purely “Not unAmerican” and just one more step on the path to social perfection.

A “war against al Quaeda, albeit asymmetric?” You are one odd but too-common puppy. $4.6 trillion and counting, to “take out” a couple of people who by all accounts, got to their behavior and mindset through the “American” exercise of “projecting our perfect power” all over the planet?

Would you maybe at least acknowledge that this is a self-creating circle? We kill some of them so they kill some of us so we kill some of them so they kill some of us so we kill some of them… using virtual pinpricks into the excuse for turning trillions in Real Wealth and Future Wealth into weapon systems and nice retirements for a bunch of general officers and MIC executives? In a process that warps and trashes our declining culture? Not to mention our economy?

JTMcPhee, There is nothing “humane” about making excuses for and performing mental gymnastics in order to justify the actions of an Unlawful Enemy Combatant like Al-Awlaqi. As a leader in AQAP who planned attacks against United States interests, as well as others, how many times must it be said that he was a legitimate target?

I don’t know if this is true or not, but it does seem to me that the moral and legal focus that most people take… for solid ethical reasons, of course… may be missing the major point here. We do know, for example, that between 2002-09 all sorts of torture happened by the US, and even more by friendly countries as part of extraordinary rendition. And we know that, most likely for a variety of reasons, the Obama administration subsequently decided not to prosecute that, nor to close Guantanamo, nor to indict people for crimes.

Now it may be that the cause of this is laziness, or a moral failing, or being just like the Bush administration, or somesuch.

However, I think it is far more likely that, overall, the Obama administration discovered to its disgust and chagrin what a mess Bush, Cheney, Rumsfeld, Yoo et al had made, and how well they had covered themselves with a paper trail. To such an extent that any attempt at revealing the crimes would burn allies and low level operatives, while letting the big boys walk. To such an extent that many people were so damaged, and knew so much about US and foreign war crimes, that they simply could not be released. To such an extent that even people who were known to be absolutely guilty of serious crimes simply could not be indicted because the evidence against them was so tainted, and they themselves were torture victims who could testify to that.

I think this is far more likely and elegant than any other explanation. It accounts for all known facts without pretending to read the minds of people whose past track record is not murderous, unconstitutional, amoral and so on. If the witnesses and evidence and accused were as tainted in various ways as described above, there would be very few viable options, and no way to reveal the facts or the underlying reasoning behind what was done.

What one would do in such a case, it says here, is to identify those truly really dangerous and act on that, simply because not doing so due to the actions of the prior Administration and our allies would be negligent of duty. And in some cases, just keep the people locked up, because the other alternatives… trial or release… are impossible.

The point being, if you are in a nasty business against nasty people to begin with, and also have to deal with a legacy of nastiness from ‘our’ side that would have all sorts of negative side effects if revealed… you end up being trapped into just what we seemed to have observed from the current administration.

Allow me a modest dissent on this. I do share your concerns about having these decisions made by faceless bureaucrats and mid-level functionaries. But this individual had been acting as an enemy of the United States for some time, and had placed himself beyond the reach of ordinary law enforcement. The logic of your argument, if applied in historical retrospection, would say that Lincoln should have tried to arrest all those Confederate soldiers instead of raising armies to fight them. (In fact, one of the important Civil War cases, the Prize Cases, may be the most on-point decision to look at.)

These are excellent questions. Another question has been raised as to why the Yemen government was not called upon to capture ‘Awlaki and extradite him. I suspect the Yemen government is too weak amidst current civil unrest to carry out this idea. The main case against ‘Awlaki seems to be that he was somehow causally connected to (“inspired”) the Christmas 09 underwear bomber and the 010 Times Square bomber. An analogy here related to the limits of free speech is holding a match ever closer to a combustible mixture (cf shouting fire in a crowded auditorium). If ‘Awlaki was inciting a war-like attack maybe there’s a comparison and a reason for missile defense. But years ago the Supreme Court dismissed a case against the KKK for a similar kind of incitement to violence as protected speech under the constitution. But this was a civil matter, not parallel with a “war” situation. Very much needed is clarification of the action taken–the evidence–and the laws governing such a horrific response. Of course civilians are anxious about when “treason” and “aiding the enemy” spreads to simply being critical of the government, as with asking critical questions. Under this ineffectual president, the ‘Awlaki controversy, along with many other problems as indicated by the Occupy Wall Street movement, is being left gray and emotional, and highly provocative. Remarkably–so far–violence has been restrained, but that could change.

Interesting debate. Seems simple enough to me: simply have a sitting judge declare someone (a traitor) like Awlaqi an Enemy of The State. Then blow him away. Good for us, not so good for him.

Makes me wonder what would happen if Jane Fonda were to go and play with the Al Qaeda boys like she did in North Vietnam a few years back. Wonder if there’d be a nice little missile with her name on it?

“Makes me wonder what would happen if Jane Fonda were to go and play with the Al Qaeda boys like she did in North Vietnam a few years back. Wonder if there’d be a nice little missile with her name on it?”

No, there would not be a missile with her name on it. As treachorous as her action was during the Vietnam War, she did not direct actions against the United States (as did Al-Awaqi); she simply registered her disagreement with the u.S. in Vietnam.

It seems to me if JFonda “simply registered her disagreement with the US in Vietnam” her action was bold, not necessarily treacherous. But the distinction is also clear–if ‘Awlaki had the power to ignite five thousand jihadis to violent action he’s some kind of “war” threat, whether the war is traditional or not. If I understand Juan’s main point it is as he states directly above–“whom is it that we trust” to oversee such an operation–what agency, given a government now seriously impacted by special influence and money. The super-committee, for example, supposedly to look over Pentagon spending could be influenced by MIC war-profiteering interests to continue support of wars that endanger the country vs. protecting it. Applauding the ‘Awlaki killing denies its implications as unrestrained political behavior without some safeguarding mechanism. Who or what agency is it, Juan, that you would recommend oversee such operations, that the people might trust?

Maybe it’s just a natural outcome of our love for the 2nd amendment. What’s the point of having all these weapons, but not “blowing someone away”.

We’re like the predator that tasted human blood and decided it was good. If Obama went in front of a joint session of Congress and announced that the CIA has just killed al-`Awlaqi, the standing ovation might last into the wee hours of the morning.

Obviously Obama is a lost cause when it comes to controlling the breadth and scale of military violence (and just about everything else). And “Four More Years” is the accepted course for whatever…

So that leaves the ACLU and the courts. The courts seem as politicized as the Congress and Administration, and are subliminally expected to be so. That leaves the ACLU (and Glenn Greenwald). For some reason I can not figure out, the Right hates the ACLU, while professing to love individual freedom. Droning that isolated organization is certainly not necessary when the national security apparatus has many ways of choking its life out, legal shmegal.

One aspect of all this is the affect on the all volunteer military. After years of warfare against such ephemeral enemies, does “when in doubt, take it out” become the common doctrine that is being inbred from private to general, and reinforced by the high paid “civilian” warriors?

No, it is not “When in doubt take it out,” and neither the Generals nor the Privates adhere to this fraudulent doctrine. It displays a naive and uneducated view of how the United States responds to attacks against its national interest. As to “highly paid civilian warriers,” I would ask, have you served in the military? If you have, you have earned the right to criticize the professional military. If you have not, you have no basis for criticizing our military forces. You would just be recognized for your lack of knowledge of the professional military.

A state that disregards the sovereignty & laws of its democratic allies will soon disregard its own constitution & laws – I’m thinking of extraordinary renditions.

You’re over egging the pudding, Juan. The image of US officials being in the dock at The Hague is a fiction; at least, over the killing of a couple of people in Yemen. It is not genocide, or a crime against humanity, or a *serious* war crime; which are the 3 crimes over which the ICC has jurisdiction.

The purpose of any changes to US law should be to make these actions transparent & legal within the framework of the US Constitution and existing US Law; and dare I suggest make them morally defensible. Making changes in order to protect nameless officials from fictional legal threats from a toothless international court is just another make work scheme for politicians and lawyers.

Last year’s Top Secret America series in the WashPost is probably worth a re-read.

The evidence is in the Geneva Convention itself, Yusuf. Read the article defining Lawful Enemy Combatants, and then determine for yourself, given his leadership role in AQAP, whether or not Al-Awlaqi meets the definition of “Lawful” or “Unlawful” Enemy Combatant.

It’s saddens me when politicians & their advisers resort to constructs like plausible deniability & secret star chambers in order to protect themselves from the law of the countries they’re supposed to be governing.

Why should we respect the law, if they don’t.

I’m not only thinking of the US, but also the UK and Australia in particular.

Excuse me, but as Glenn reminded us today, a drone strike in Yemen not long ago killed dozens of civilians (women, children & elders – I know, how quaint to consider their lives as meaningful), and that does (in my quaint mind) rise to a Crime Against Humanity. Let’s try not to loose our own humanity when discussing this savagery from our armchairs.

The arguments about us being “at war” are simply disheartening. The only possible reason for that argument is to justify the kind of action that results in loss of civil liberty at home, and death and destruction abroad. Of what use is the claim if you are not imposing restrictions at home? You might use the claim to raise taxes to pay the cost, but we are not doing that. You might use the claim to justify not doing other things, but we are not doing that either. We are using the claim, here at home, to justify the “Patriot Act” and the “MCA” and other such restrictions on civil liberties. We are using that claim abroad… Well, we all know how we are using that claim abroad.

The only provable act Awlaqi committed was to publish statements to the effect that people who hated America had some valid reasons for doing so. The government then announced that he had committed actions which they could not prove, and killed him. What they did was prove that his statements were true.

Al-Awlaki was hardly the only person saying the kinds of things he did or plotting against the US (if he actually did that), nor does he seem to have been the most dangerous. It appears he was targeted because he was a US citizen, not in spite of it. His assassination in that light is an act of vengeance, rather than national defense.

The Constitution requires Congress to authorize war with a specific declaration, so it is obviously illegal for the executive to carry out acts of war against any organization or person against whom Congress has not declared war. It was certainly not meant that the executive has the power to declare war against small groups or individuals. As far as I know the US has not declared war against Al Qaeda, although there would be some sense in this.

What’s deeply saddening to me is that the only reason we can even have this discussion is that the guy was an American citizen.

The implication seems to be that our ‘right’ to visit mayhem of all sorts on any of the other 94% of the world’s people, for any reason or no reason at all, is accepted as a given and of no consequence moral or otherwise.